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Chief Election Commissioner cannot act on his own: Ashok Desai opinion

During the tenure of Chief Election Commissioner B. B. Tandon, the Election Commission of India sought the legal opinion of Ashok H. Desai, barrister, senior advocate, and former Attorney-General for India, on Article 324(5) of the Constitution. The key question was whether the CEC can initiate suo motu action for the removal of an Election Commissioner without a reference being made by the appointing authority, the President. This is the text of Mr. Desai’s confidential Opinion:

On 16.3.2006 Shri L.K. Advani, Leader of the Opposition in Lok Sabha, along with 204 other Members of Parliament submitted a petition to the President of India Seeking the removal of Shri Navin Chawla, Election Commissioner (EC) under Article 324(5) of the Constitution of India. On 17.3.2006, Shri V.K. Malhotra, Member of Parliament sent a copy of the said petition to the Chief Election Commissioner (CEC) for necessary action.

2. Subsequent events disclose that the President has forwarded the petition to the Prime Minister. But the Prime Minister has not yet forwarded it to the CEC. The CEC has not received the petition through any official channel.

3. The short question for consideration is whether the CEC can initiate suo motu action merely on the copy of petition sent to him by Shri Malhotra. The petition makes various allegations against the concerned EC, which relate to his activities during the period of internal emergency (1975-1977), his activities as a bureaucrat, his proximity to the Congress Party, to the Trusts run by his family and to his functioning as an EC. The petition itself is addressed to the President with an appeal that the concerned EC should be removed under Article 324. It concludes with the statement that a copy is being independently sent to the CEC so that he can begin to act in the matter immediately.

4. The provisions about the Election Commission are contained in Part XV of the Constitution Article 324(5) which provides for conditions of service and tenure of office is of special relevance. It reads as follows:

“(5) Subject to the provisions of any law made by Parliament, the conditions of service and tenure of office of the Election Commissioners and the Regional Commissioners shall be such as the President may by rule determine:

Provided that the Chief Election Commissioner shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and the conditions of service of the Chief Election Commissioner shall not be varied to his disadvantage after his appointment:

Provided further that any other Election Commissioner or a Regional Commissioner shall not be removed from office except on the recommendation of the Chief Election Commissioner.”

5. Thus, an EC can be removed from office only on the recommendation of the CEC. In T.N. Seshan, Chief Election Commr. Of India v. Union of India (1995) 4 SCC 611 the Supreme Court elaborated on the scheme intended by Article 324 as follows:

“However, the proviso to clause (4) of Article 324 says (i) the CEC shall not be removed from his office except in like manner and on the like grounds as a Judge of the Supreme Court and (ii) the conditions of service of the CEC shall not be varied to his disadvantage after his appointment. These two limitations on the power of Parliament are intended to protect the independence of the CEC from political and/or executive interference. In the case of ECs as well as RCs. The second proviso to clause (5) provides that they shall not be removed from office except on the recommendation of the CEC. It may also be noticed that while under clause (4), before the appointment of the RCs, consultation with the Election Commission (not CEC) is necessary, there is no such requirement in the case of appointments of ECs. The provision that the ECs and the RCs once appointed cannot be removed from office before the expiry of their tenure except on the recommendation of the CEC ensures their independence. The scheme of Article 324 in this behalf is that after insulating the CEC by the first proviso to clause (5), the ECs and the RCs have been assured independence of functioning by providing that they cannot be removed except on the recommendation of the CEC. Of course, the recommendation for removal must be based on intelligible, and cogent considerations which would have relation to efficient functioning of the Election Commission. That is so because this privilege has been conferred on the CEC to ensure that the ECs as well as the RCs are not at the mercy of political or executive bosses of the day. It is necessary to realize that this check on the executive’s power to remove is built into the second proviso to clause (5) to safeguard the independence of not only these functionaries but the Election Commission as a body. If, therefore, the power were to be exercisable by the CEC as per his whim and caprice, the CEC himself would become an instrument of oppression and would destroy the independence of the ECs and the RCs if they are required to function under the threat of the CEC recommending their removal. It is, therefore, needless to emphasise that the CEC must exercise this power only when there exist valid reasons which are conducive to efficient functioning of the Election Commission. This, briefly stated, indicates the status of the various functionaries constituting the Election Commission.” (emphasis added)

6. The principle that appears from the above is that ECs can be appointed by the President without consultation with the CEC. However, once so appointed, they can be removed only on the recommendation of the CEC, thus ensuring their independence from the executive of the day. The Court has emphasised that the CEC himself is under the legal constraints indicated when he acts under the Article.

7. There is a distinction drawn between the process of removal of CEC and the process of removal of an EC. Since the President is the appointing authority, the removal itself can only be by the President. But the condition precedent to the removal of an EC is that he can be removed only on the recommendation of the CEC on a petition addressed to the President. This would suggest that the CEC cannot act on his own and must await the reference through proper channels to be able to act on a complaint or petition seeking the removal of an EC.

8. This conclusion is also borne out by a pragmatic approach. The present petition is signed by as many as 205 Members of Parliament. It cannot, however, be ruled out that, in future, there may be petitions signed or supported by smaller groups or even individuals. It is difficult to see how the CEC can suo motu act on such complaints or petitions without awaiting a formal reference.

9. I am therefore of the opinion that, before acting in the matter, the Chief Election Commissioner must await the petition submitted to the President by Shri L.K. Advani on March 16, 2006 to be forwarded to him an not initiate an inquiry suo motu.

Ashok H. Desai

Senior Advocate

Place: New Delhi

Dated: April 12, 2006

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